Book Synopsis – The Terror Courts

Adrian Lo is an undergraduate in the class of 2015 at Yale University.

The history of the Guantánamo military commissions has been nothing less than tumultuous since its creation by the Bush administration. Designed to prosecute foreign prisoners accused of involvement in terrorism after 9/11, the commissions have faced continuous criticism and legal challenges up to the present. In The Terror Courts: Rough Justice at Guantanamo Bay, Jess Bravin writes a fast-paced account of the Guantánamo military commissions, which he calls “the most important legal story in decades.” Bravin follows the development of the commissions from their conception through their legal challenges, start-stops, and reforms. Bravin, who covered the commissions as The Wall Street Journal’s Supreme Court correspondent, was involved in some of the earliest reporting about the administration’s interrogation and detention program. His book admirably weaves together different strands of the commissions’ cluttered history—including commission proceedings, several constitutional challenges (including Rasul and Hamdan), and career profiles of individuals involved. Terror Courts offers a coherent account of the military commissions that highlights both their underlying movations and their surrounding battles. Focusing primarily on the original iteration of the commissions from 2001 to 2006, Bravin portrays the military commissions as “the legal equivalent of a war of choice,” which hindered, rather than facilitated, the trial of terrorist suspects compared to the existing civilian court system. Written with a voluminous amount of behind-the-scenes detail, Bravin’s chronicle also offers a unique foray into the operations of the Bush administration.

Bravin argues that the military commissions were not developed because the civilian justice system was inadequate to handle the cases of captured terrorists. “None of the government agencies responsible for fighting terrorism­,” he writes, “including the CIA, the FBI, the Justice Department, and the Defense Department–contended that the existing court system was unequipped to prosecute terrorists or sought establishment of a permanent, parallel justice system offshore.” Nevertheless, the administration chose to establish military commissions under the military justice system that “was not designed for criminal conspiracies or high-stakes national security cases.” Judge Advocate Generals (JAGs) staffing the commissions as attorneys and judges had little experience in national security litigation and were unfamiliar with the complex legal challenges raised. Scrutinized over their legitimacy, procedures, and fairness by federal courts and the legal community, the military commissions ended up displaying “indulgence toward defendants, if not outright leniency” that would not occur in federal courts. Contrary to the Bush administration’s belief that detainees would be convicted “more rapidly and receiv[e] stiffer sentences” in military commissions, Bravin argues that it ended up being a less efficient system of justice than the existing civilian courts. Instead the commissions were conceived and championed from the outset “by officials whose primary motive was redistributing powers from the legislative and judicial branches to the executive.” Driven by the philosophy of an expansive executive shared by administration attorneys David Addington (Vice President Dick Cheney’s legal counsel) and John Yoo (Deputy Assistant Attorney General in the OLC) that came to dominate the Bush administration’s legal vision, “commissions were an expression of that ideology rather than a pragmatic response to an irresolvable problem.”

Bravin traces the theory of military commissions as a type of military operation existing “not to limit the government’s advantage but to maximize it” to a previous generation of legal advisors like Bill Barr, the former Attorney General who handled the 1988 Lockerbie bombing. The idea resurfaced after the 9/11 attacks—declared as an act of war by the White House—which opened “the way to reshape the constitutional landscape to [the administration’s] liking.”

The architects of the military commission in the Bush administration were inspired by the precedent of a 1942 military commission authorized by Franklin Roosevelt to try eight Nazi saboteurs. The trial of German saboteurs by military commission, upheld by the Supreme Court in Ex parte Quirin, reversed earlier practices of the U.S. trying German agents in civilian courts. Unlike the hundreds of U.S. military commissions held overseas after the Second World War that shared structures similar to courts-martial, Quirin was unique because of the level of executive influence and the rapid conviction and execution of the defendants at trial—six of the eight saboteurs were executed within a month of the commission’s appointment. Bravin writes that Addington and Yoo, both chief architects of the initial military commissions, were fascinated by the Quirin precedent, which they believed affirmed the President’s vast executive power during wartime.

In spite of the fact that Quirin left unresolved whether the President as Commander in Chief has inherent power to convene military commissions, the OLC saw it as part of the President’s power during war to establish military commissions without explicit congressional authorization. Bravin finds that advisors of President Bush believed that even if congressional authorization were necessary, the 2001 Authorization for Use of Military Force provided authority to the full extent permitted by past executive practices, including establishing military commissions, despite containing no explicit reference to them.

The initial draft of the military order establishing the military commissions made no reference to the principle of due process, declaring it not practical to follow the principles of law and rules of evidence expected in a court-martial or federal court. The draft also denied prisoners selected by the president for trial before the commissions any remedy from any domestic, foreign, or international court. Guantánamo was chosen for the commissions precisely because, away from both the mainland U.S. and the battlefield, it was seen as an extralegal location where constitutional and legal protections for civilian and typical military trials would not apply. The military commissions thus revived the practice of “dispensing rough justice to enemy prisoners” which, in Yoo and Addington’s view, was “a true American tradition that had been lost in the postwar legal fetish for individual rights.”

While defending in public the military commissions, attorney general John Ashcroft saw the design as a threat to the core function of the Justice Department, which had a successful record of prosecuting al Qaeda-linked defendants in federal courts since the 1990s. The military order that established the commissions “presumed that the criminal justice system had failed,” which “envisioned creating for the first time a permanent legal structure under the president’s sole command.” Despite his protests, the 2001 military order handed control of the commissions to Secretary of Defense Donald Rumsfeld, with the final memo making no mention of the Justice Department.

Just as the Department of Justice was removed from the military commissions, many others within the Executive branch were kept outside the decision-making loop for the prosecution of Guantánamo detainees. Bravin’s research shows that key advisors such as Condoleezza Rice (National Security Advisor), Colin Powell (Secretary of State), and George Tenet (Director of the CIA) only discovered the existence of the initial executive order establishing the commissions from press reports after the fact. Other agencies and departments also were systematically excluded from the design and operations of the commissions. Communication between the Pentagon and the Department of Justice was described as a “one-way street,” where federal prosecutors were furious to find their suspects being transferred to Guantánamo without notice. A similar story could be told about the CIA, which had no role in establishing the commissions and proved very uncooperative with the military commissions.

The lack of inter-agency cooperation was only one of the reasons why the military commissions failed. Many of the original goals of the military commissions were stymied by domestic and international pressures. While at first largely shielded from domestic concerns, the commissions turned out to be extremely vulnerable to foreign influence, particularly those of America’s allies in the War in Iraq. For example, Moazzam Begg, a high-level detainee and British national captured in Pakistan suspected of providing financial support to an al Qaeda training camp, was released without trial because of pressure from British Prime Minister Tony Blair, a key U.S. ally. In another case, suspects held and charged for involvement in the same terrorist plot received radically different sentences when tried in civilian courts and by military commission. Jose Padilla and Binyam Mohamed were detained together and accused of attempting to explode a “dirty bomb” in an American city. Padilla, a U.S. citizen tried in federal courts, was convicted and sentenced to 17 years in prison; whereas Mohamed, a British citizen slated for trial by a military commission, was eventually sent back to the UK without charge at the request of the British government.

Bravin covers the commissions from the perspective of Marine Lt. Col. Stuart Couch, who served in the Office of Military Commissions as a prosecutor from 2003 to 2006. Couch was involved with most of the major cases tried in the military commissions, including the trial of Khalid Sheikh Mohammed (KSM), Salim Hamdan, and USS Cole bombing suspect Rahim al-Nashiri. A former JAG who re-enlisted after losing a friend during 9/11, Couch was initially eager to bring detainees to justice. But it did not take long for him to recognize the pervasiveness of the administration’s torture methods and how it had tainted evidence collected from many suspects. During his visits to Guantánamo, he recognized detention and interrogation strategies from the playbook of his own military resistance training years ago. It became evident to Couch that these detainee testimonies, which made up most of the prosecution evidence, were extracted under coercion or even torture, even though they were permitted by the rules of the commission. Couch knew that defense attorneys would certainly challenge the admissibility of the evidence. He saw these practices as legal concerns for the commissions and raised these issues with his superiors, only to find a culture of silence and dismissal.

Legal concerns turned into moral struggles as Couch tried to square his personal ethics with the practices of the commission. During the investigations of Mohamadou Ould Slahi, Couch discovered the use of enhanced interrogation techniques by the Defense Intelligence Agency after it had grown impatient with the FBI’s interrogation. Although Couch was convinced that Slahi was guilty, Couch concluded that the interrogation techniques violated the United Nations Convention Against Torture and by extension, the War Crimes Act. As an act of disapproval, he chose to formally disassociate himself from any prosecution efforts against Slahi. In 2009, Susan Crawford, the convening authority of the Guantánamo military commissions, eventually admitted publicly to the allegations of torture by dismissing charges against Mohammed al Qahtani, who suffered from similar treatment as Slahi did during interrogation.

One of the surprises in The Terror Courts is the resistance shown by military officers staffing the commissions to the administration’s attempt to withhold fair trial and due process by fiat. Bravin portrays the servicemen staffing the commissions, like Stuart Couch, as strong defendants of core military and American values who grew uncomfortable with the disorderly operations of the commissions, the lack of vision of the mission, and the rigged process. Far from being sympathetic to the detainees, these servicemen often shared the conviction that the detainees were culpable. But they recognized at the same time that the deprivation of fundamental rights, such as the right to appeal, was incompatible with the Uniform Code of Military Justice and damaging to the reputation of the armed forces. Throughout the book, Bravin portrays many of these servicemen like Couch and Navy Lt. Commander Charlie Swift (defense counsel of Salim Hamdan) as silent heroes who tried to reform the commissions from within.

Even though rules governing the military trials grew significantly following the Supreme Court decision on Hamdan v. Rumsfield in 2006 and President Obama’s revisions to the commissions through the Military Commissions Act of 2009 – a period that the book treats in relatively broad strokes – there remains much for future administrations to address. Bravin regrets the failure of President Obama to take more decisive action to close Guantánamo and reform the military commission system, despite promises as a candidate to do both. He argues that when the Obama administration announced that KSM and the other 9/11 defendants would be tried in a military commission following an abandoned attempt to try KSM in federal court, the Obama administration effectively gave the military commissions a bipartisan imprimatur that would ensure their continued existence.

The strength of The Terror Courts lies in a narrative structure that coherently weaves together different sources—from Congressional testimonies to courtroom transcripts to interviews—to offer a comprehensive and accessible account of the military commission system’s development. Nevertheless, Bravin could have ventured deeper into analyzing the difficulties for reform moving forward. While the legitimacy of the commissions continues to be contentious, it remains to be seen whether the commissions “can be done right at all.”